CHAPTER I . Overview. A. Electronic Discovery 1. Acknowledging ESI (Rules 26, 33 and 34) 2. Dealing with ESI Early in Litigation 3. Special Situations: Not Reasonably Accessible ESI; Inadvertent Production; Safe Harbor 4. Subpoenas Seeking ESI (Rule 45) B. Privilege (Fed. R. Evid. 502) C. Expert Discovery CHAPTER II Obtaining Documents And Written Discovery A. The Scope of Discovery 1. Relevant Time Period 2. Geographic Area 3. Relevant Products 4. Protective Orders B. Required Disclosures under Rule 26 C. Requests for Production of Documents 1. Process under the Federal Rules a. Document Requests Directed at Parties b. Response to Requests e. Confidentiality Orders d. Organizing the Documents 2. Strategic considerations 1. Interrogatories 1. Federal Rule 2. Strategic considerations. E Request for Admission. 1. Federal Rule 2. Strategic considerations. CHAPTER III. Obtaining testimony by deposition. A. Overview of Federal Rule Procedure B. Considerations Related To Depositions 1. Why take this Deposition 2. Whom to Depose Initially 3. When to Take Depositions 4 What to Depose About 5 How to Depose the Witness C. Preparing for depositions. 1. Privilege Assertions and instructions Not to Answer 2 The Scope of Rule 30(b)(6) Topics Specified in the Notice 3. Off-the-Record Conferences Between Witness and Counsel 4. Evidentiary Objections 5. Deposition Preparation and Privilege D. Defending Depositions CHAPTER IV Obtaining Discovery From Third Parties A. informal investigations B. Federal Rule 45 Subpoenas C. Corporate Affiliates D. Nonparty Market Participants CHAPTER V Expert Discovery A. Selecting Experts 1. When and How to Use Experts 2. Locating Expert Witnesses 3. Choosing the Experts a. How Many? b Conflicts c. Presentation Styles and Demeanor 4. Managing the Expert 5. Expert disclosure. a Identity of Expert Witnesses b. Timing of disclosure c. Contents of disclosure. d. Deposing the Expert e. Requirement of Supplementations 6. Pretrial Communications with Experts - Changes Under the 2010 amendments to Federal Rule of Civil Procedure 26 a. Changes from the 1993 Amendments b. Work Product Protection c. Three Exceptions to the Protection of Expert communications (1) Expert Compensation (2) FactsData Considered By the Expert (3) Assumptions the Expert Relied On d. Discovery of Draft Expert Reports and Communications Not Applicable to Rule 26(b)(4)(C)(i)-(iii) e. Continuing Precautions Under the 2010 Amendments B. Pretrial Exclusion of Expert Testimony 1. Using Discovery to Make a Daubert Challenge in Antitrust Cases 2. Timeliness of Disclosures 3. Reliability of Expert Testimony CHAPTER VI Discovery Of Electronic Evidence A. Historical Development of E-Discovery 13. Significance of Historical E-Discovery Developments on Modern Antitrust Litigation C. The 2006 Amendments to the Federal Rules of Civil Procedure 1. “Documents” Includes ESI 2. The Discovery Meet and Confer Process 3. Two-tiered approach to accessibility of ESI 4. Privilege Screening and inadvertent Production 5. Form of Production 6. interrogatories 7. Third-Party discovery 8. Restrictions on Sanctions D. Scope of Electronic discovery in Commercial and Antitrust Cases 1. E-mail, Instant Messages, and Text Messages 2. Computer Databases 3. Internal Memoranda and Draft correspondence 4. Spreadsheets and Financial Data 5. Metadata 6. Videos and Photographs 7. voicemail 8. Litigation Databases 9. Backup Media E. Key Issues in Electronic Discovery 1. Learning the Language 2. Using a Consultant/Expert 3. Document Preservation/Destruction & Sanctions/Liability for Spoliation 4. Costs and Cost Shifting 5. Waiver of Privilege and Work-Product Protection 6. Authenticity/Admissibility CHAPTER VII Attorney-Client Privilege and Work Product Immunity. A. Attorney-Client Privilege in Antitrust Litigation 1. Which Law Governs? a. Federal Law Questions. b. State Law Questions c. Foreign Interpretations of the Attorney Client Privilege 2. Basics of the privilege a. The Privilege in Federal Court b. Non privileged communications in Federal court (1) Communications concerning “Business Advice” (2) Internal investigations c. Communications with Representatives of the Lawyer/Client (1) Employees of the Lawyer (2) Employees of the Client. 3. Assertion of privilege a. Document requests b. Interrogatories c. Depositions d. Protective orders 4. The Crime-Fraud Exception to the Privilege 5. Waiver of the Attorney-Client Privilege 6. Global Antitrust investigations B. Work—Product Immunity 1. The Privilege 2. Application and Elements a. General Background b. Qualified Privilege c. Proceedings in Which the Privilege May Be Asserted d. Three-Factor Test e. Who Can Assert the Privilege/How to Assert the Privilege f. Materials Covered by the Privilege 3. In Anticipation of Litigation a. Causation b. Defining “In Anticipation” Temporally e. Applicability in Separate Lawsuit 4. Fact and Opinion Work Product a. Fact Work Product b. opinion Work Product 5. Waiver of Work—Product Protection 6. Practical issues a. Standard and Computerized Databases (1) Use of databases (2) In anticipation of Litigation (3) Database Organization: FactOpinion? b. Experts and Consultants (1) Preliminary Investigative Stage: Non-testifying Experts (2) Trial Preparation Stage: Testifying Experts c. Work-Product Privilege and Other Specific Antitrust Issues CHAPTER VIII Strategic Considerations For Multidistrict Litigation A. The process of Consolidation B. Considerations After Transfer C. Indirect purchaser actions and related Discovery Issues CHAPTER IX Obtaining documents and Testimony Presented Before a Grand Jury A. Grand Jury Secrecy B. Disclosure of Documents C. Disclosure of Testimony—The particularized Need Standard D. Impact of Diminishing Secrecy CHAPTER X Foreign Discovery Issues A. Obtaining Evidence Located Abroad for U.S. Proceedings 1. Method of Discovery a. Merits Discovery b. Jurisdictional Discovery 2. Place of Discovery a. Document Requests and Interrogatories b. Depositions (1) Relative Burdens on the Parties (2) Court’s Ability to Supervise (3) LegalProcedural Impediments to Taking Depositions Abroad (4) Potential Affront to Foreign Nation’s Sovereignty B. Obtaining Evidence Located in the United States for Foreign Proceedings C. Discoverability of Foreign Government Submissions 1. Comity 2. Other Attempts To Block Discovery of Information 3. Discovery of Facts Underlying Foreign Government Submissions 4 Other Privilege Concerns
